Thursday, July 18, 2013

I Would Actually Endorse A Sting and the Police State

Young teacher, the subject of warrant-less scrutiny...
By Robert H.

The latest libertarian trend is to claim we live in a police state.  Popehat is doing it here.

First off, our criminal justice system is terrible and rife with human rights abuses.  It's worse than you think (216,000 prisoners are sexually abused a year!  Most by guards! 30,000 people in a solitary confinement regime that amounts to torture!  Racial bias controlling who goes to jail!  The flashy stuff (NSA spying, Gitmo, secret evidence, etc). It's awful!)  But it's not police state bad.  In a comments section (one I don't particularly recommend reading, the conversation is dull) I explained why I don't think we are a police state.  I am just going to copy and paste that here.  Check out the last paragraph for another fascist libertarian sighting:

Since I was asked, I will rejoin the conversation for one more post.  My dividing line for police state/not police state is "does the rule of law routinely constrain the government's exercise of police power."  In America, it clearly does. 
This is not to say that it always effectively constrains the police power.  There are failures -- too many.  But boy howdy does it *often* constrain police power.  Let's take an example from my criminal defense days (working for a criminal law attorney as a law student.  As an attorney I have never practiced criminal law) and think about a DWI arrest in the city I was then living in.  Does the rule of law constrain how this goes down?  Clearly.   
Things that will happen during the arrest and trial of our DWI defendant which the cops are only doing or allowing because of the rule of law.  IE, shit they do not want to do but will (if this list is too boring, just replace it with the words "lots of things"):
1. Record the entire stop on camera.
2. Not force the defendant to take a breathalyzer test if he refuses.  Alternately, they could pay a judge to stay up all night signing orders that let them force tests on people.  They never did the second option when I was there because it is too costly and judges hate it.
3. If the defendant agrees to a field sobriety test, the cop will call a special officer trained in the field sobriety test, wait for him to show up, and then the new cop will spend a few minutes very carefully giving the test in a way that will stand up to scrutiny (cases got overturned too often when they tried to train every cop in giving the test, so they went to this new system).
4. Stop questioning the defendant if he asks for an attorney (remember, they are on tape).
5. Let the defendant call an attorney.
6. Get the D before a magistrate to make a probable cause determination within 48 hours of the arrest.
7. Give the D a hearing where he can make the case for reasonable bail, with some protections on the setting of bail.
8. Give the defendant access to and a copy of that tape I've been talking about.
9. Give the D a trial.  A jury trial if he asks for it.
10. Give the D time and evidence to prepare for the trial.  Exclude improperly collected evidence from the trial.
11. Give the D a right for his attorney to show up at the trial.
12. Make the trial public.
13. Pay a lawyer to represent the D if he can't afford one.
14. Let the D go if he wins the trial.
15. Let my boss appeal the trial.  This initiates a new trial that is public, itself appeal-able, etc.
16. Let my boss file collateral attacks on the D's imprisonment if he loses the trial and is imprisoned, IE federal habeas motions.
17.  Limit the term of the D's custodial confinement and the amount he can be fined.
18. Etc, etc, etc.

The cops wants to do none of this.  It is a lot easier to just pull someone over, realize they are clearly drunk, get him to a judge when you feel like it, and have the judge assign whatever sentence seems to him fair (or that his political masters tell him to assign). All these other things either make imprisoning my client more costly, harder, or impossible, depending on the facts of the case.  These things let my then boss negotiate or win outcomes the state police and DA don't want.  Even better, if the governor or president decide they don't like this stuff, in most cases they would be shit out of luck.  Or they could stage a military coup, I guess. 
These are also not iron clad protections.  A drunk driver hating cop could pull over the defendant, turn off his dashboard camera, shoot the D, and maybe get off.  But then again, anyone could commit a crime anywhere and maybe get off.  As things stand, the practical upshot of all these legal protections is the state doing things it doesn't like and people spending less time in jail because of it. 
Lots of states don't have most of these protections.  A public trial, a trial so rigorous you have to film yourself if you hope to win it, a right to an attorney, an exclusionary rule, careful monitoring of how cops administer sobriety tests, the ability to refuse the breathalyzer test, etc. etc. etc.   It's just not there.  It's a lot more like the "cop decides you are guilty, judge believes him and gives you the punishment he feels like" procedure.  If there is a judge.  And they bother to give your sentence a definite term. And the cop bothered to see if you were actually guilty of a crime.
So that's the rule of law.

In bigger things as well the government is constrained by the rule of law.  Even in Gitmo, a shining example of our system at close to its worst, the defendants have routinely been able to force the executive to do things the executive does not want to do (IE, have congress establish a procedure for the status reviews, stop strip searching detainees before they meet with their lawyers, give detainees meaningful access to federal courts, etc.)  Obviously the rule of law has, in the main, failed at Gitmo.  But it has done way way better than it would in many many other states.   
So again, the state screws up all the time!  Badly!  America perpetrates terrible human rights abuses!  The rule of law does not effectively constrain some state actors at some times!  We are torturing, as you say, tens of thousands of prisoners in solitary confinement at any given time!  That sh-- is f---ing terrible.  But turning away from those abuses to the core of American life, the rule of law is still really active and really powerful here, if not as active and powerful as we would like.  In a police state, that is not true.  Things aren't mostly nice here because we have a mostly nice police state.  Things are mostly nice here because we don't have a police state, and the state's ability to be mean is mostly constrained..
As an aside, my own take on how I came to my views is not that I was brainwashed to love America, because I am not a nationalist and would defend a whole host of other human rights abusing states from the name "police state."  Instead, I would explain it this way: I've studied and worked in the American criminal justice system and I know how  bad it can be.  I also have a passion for international human rights law, and know  just how bad other countries can be.  The rule of law is strong here.  Elsewhere, it is nonexistent.  Those are the police states.  
Finally, if you can indulge a request of mine, please begin your next essay on the American police state by stating your beliefs that 1. America is just as bad as Nazi Germany, and 2. Human rights and the rule of law were respected for everyone in Nazi Germany's core territories except for the Jews.  Those two beliefs are the single most surprising and important things someone could know about your world view before they invest time in reading your essays.

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